P v P [2007] EWHC 779 (Fam)

Application by father for summary return of his son to the US. Application failed.

The mother opposed the order on the grounds that the child had not been resident in the US, that the father had consented to the removal of the child and that he had acquiesced in the child remaining in the UK. Although Sumner J found that acquiescence could not be proved, he did find that the child had never been resident in the US as the mother and child had only been there for 8 days, a period insufficient to establish a new habitual residence. He therefore excercised his discretion to reject the application.

Hearing dates: 27 March 2007- - - - - - - - - - - - - - - - - - - - -Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

THE HON. MR JUSTICE SUMNER

This judgment is being handed down in private on 4 April 2007. It consists of 11 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

The Hon. Mr Justice Sumner : Introduction1. This is an application by the Plaintiff father, 33 year old Mr W P, for the summary return of his son A, now 7 years old, to the jurisdiction of the courts of the United States pursuant to the Hague Convention. This is opposed by A's mother, 43-year-old Mrs F P. She claims that A was not habitually resident in the United States when he left with her on 6 September 2006. Furthermore she says the father consented to A leaving the United States. He also acquiesced in his remaining in England.

Background2. The father is a United States national, the mother is a United Kingdom national. The mother stayed with the father for a short time in United States before she returned to England with him in January 1997. They married in England on 8 July 1997. A was born two years later. The parties continued to live in England until the summer of 2006.

3. At the end of July 2006 the father went to the United States. This was part of a plan for them to go and live in Washington State. The mother arrived with A in the United States on 26 August 2006. It is not in dispute that the relationship came to an end on 3 September 2006. The mother returned to England with A three days later.

4. It is agreed that the father consented to the mother leaving with A. He says that it was on the basis that the mother would return to the United States at Christmas time. She unlawfully retained him when she did not do so. The mother says that the father agreed to her leaving the United States permanently with A. She did agree to return at Christmas, but it was only for a visit.

5. The mother says that once she had returned to England, the father acquiesced in her remaining here with A. The father denies this. Each party relies upon subsequent e-mails between them as supporting their respective cases on consent and acquiescence. There is no dispute that at the relevant time the father had rights of custody in respect of A.

The Hague Convention6. It was brought into force in England by the Child Abduction and Custody Act 1985. In brief it provides for the situation where a child, habitually resident in country A, is taken to or retained by one parent in country B in breach of rights of custody of the other parent. Where both countries are signatories to the Convention as here, the courts of country B must send the child back summarily to the jurisdiction of the courts of country A for those courts to decide where and with whom the child should live.

7. The child's habitual residence in country A at the time of the removal or retention is an essential pre-requisite to any breach of rights of custody. Without that the claim under the Convention fails, Article 4. If however the parent removing or retaining the child proves that the other parent either consented to or acquiesced in that action then the court has a discretion under Article 13 of the Convention whether to return the child or not.

The hearing8. Both parents gave evidence before me. The father was represented by Mr Jarman, the mother by Ms Charlton. I heard submissions both on the law and the facts to which I now turn.

Habitual residence 9. The classic definition is to be found in the speech of Lord Brandon in Re J (A Minor) (Abduction: Custody Rights) (1990) 2 AC at 578 –

"…..there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day, if he or she leaves it with a settled intention not to return to it, but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B."

10. Ms Charlton realistically accepts that, though the mother was reluctant to go, nevertheless the evidence demonstrates that she had the necessary settled intention when she left England. However, she argues that a period from 26 August to 3 September is not an appreciable period of time. Mr Jarman concedes that 3 September is the relevant date being the date when the relationship came to an end. I am satisfied this is correct (see Re F (A Minor) (Child Abduction) (1992) 1 FLR 548). He submits, however, that on the facts of this case, a week is an appreciable period of time.

The evidence11. I turn to the facts as I find them to be. It was the father's initiative to move to the United States. The mother was reluctant. She went to save the marriage. She had made the necessary visa application and attended a short interview at the United States Consulate before she left. Their home had been sold and their goods were in transit.

12. The mother felt the father to be controlling of her but he also left everything for her to do. She was cross when she arrived. She considered the father had done nothing in the month he had been in the United States. He had not found a home though he had a list of properties. They had to spend 2 nights with his parents as a result, after the first night in a hotel. She had not wanted to do this. She wanted to move into their own home immediately. They then rented a property which was on the father's list. She had had to find a school for A, though he had to be seen before he could be enrolled.

13. She realised that things were not going to get better. It was obvious to the father that the mother was not happy. On 3 September there was a discussion. In answer to his questions, the mother told the father that she was unhappy because he had done nothing. She did not love him, and wanted a divorce. There was no future in their marriage. She wanted to go home but only if she could take A. He said that of course she could take A as he accepts.

14. She was shocked when he said she could not have more children, as was the case, but he could always marry and have more children. They talked about the schools for A in England and the fees. He booked her return ticket though she paid. He took her to the airport. He knew the relationship was over when she left. It was a great shock for him. It led to him to have a form of breakdown afterwards and to take a trip to Mexico for some 4 or 5 weeks soon afterwards.

15. The father says he could not think straight at the time. There was going to be no decision until Christmas about whether they would continue with the marriage and no permanent decision about A. He had discussed the matter with lawyers before he went to Mexico. Wrongfully he thought the mother might face a jail sentence on her return. He tried to resolve matters with her when she was in England.

Emails, letters, and telephone conversations16. Most of the communication was by email. There are some 100 pages of documents. I have read them. I quote extracts from the more relevant ones.

The mother, 17 September 2006, p.97.

"You know what, no it is not time to talk. I have hardly had time to touch the floor, yet alone think about anything else … I did say I wouldn't make a decision until Christmas and you starting just over a week later isn't helping."

The father, 17 September 2006, p.98.

"I am sorry F. I didn't mean to word that wrong, but I guess it just came out wrong. I know you're still really mad at me, at life, and everything right now. I know that it isn't the right time to talk about us, but I have to … You need time to think. And I'm going to try everything in my power to let to have their time ... I am not trying to fix our marriage … I made a promise that I wouldn't pressurise you and that I would give you as much time as you needed."

The father, 4 page letter 22 September 2006, p.102a-d.

He said that he was still reeling inside. She had to lead her life however she saw fit, and he must do the same. He wanted to be part of her life, but knew that it was not possible for the moment. He was trying his best to leave it as it was. She was to tell him when and if she was ready.

The mother to the paternal grandfather, 7 November 2006, p.131.

"We haven't heard from W, but then he doesn't want to be known his whereabouts, its all in his plan …he will surface when he wants to…"

"Christmas …well unless he gets back and signs a couple of papers and gets the air tickets, then no we won't be over this year, not what we were expecting, but then I didn't expect W to disappear off to Mexico either…"

The father, 8 November 2006, p.134.

"Hi. Just got back today … anyway, what papers do you want me to sign? Are they for the decree? If so, when did you file so I know where I stand … if not when are you going to file, so I know what to expect?

The father, 9 November 2006, p.138a.

" …..As for the decree, for business reasons I need to have notice at what to do and how to filed tax wise in United States. And personally, I would like to know where I am with you, and at what stage in our divorce we are at, so I can move on with my life, which I think is fair …

The mother, 9 November 2006, p.140.

"What is it with you and the urgent need of the decree???"

The father, 12 November 2006, p.151.

"You know, you never answered me about Christmas. I need to know, please, and the other stuff as well. I think it's time you tell me what's going on, and where we go from here."

The mother, 12 November 2006, p.157a.

"What did you want to know… I told you already, I need papers signed first and if you send the money for the flights as I've not got money for them, you hold all the dosh remember ... I am seeing the solicitor again on Tuesday."

The father, 12 November 2006, p.157b.

"And I thought you were going to handle the tickets, as that is what the promise to me was? But I understand, and if you want me to pay for A's ticket, that's fully understandable…..so what are the papers you want signed? You just keep saying papers? Is it the reply to the divorce decree? Have you filed yet? These are the things I want to know, since you asked."

The mother, 15 November 2006, p.162a.

"Well, I'm absolutely astounded that you are saying you will pay for A's ticket … are you insinuating that you won't pay mine? I'm afraid, if you won't send the money for both we won't be able to come out ... Providing you will have placed funds in the bank for the flight we can fly out on 19 Dec and return to the UK on 4 Jan … Well let me know if these dates are okay with you."

The father, 16 November 2006, p.162b.

" … I will start looking in the flight for you next week, with the dates that you sent me … I don't really want to get into the money side of things, right now, please. Besides, I've been advised not to speak about these things until after the formal declaration of divorce has been decreed by the courts. If you have the dates for that, it would be helpful if I could pass those on … I do want to speak to about custody of A, but I don't want to discuss it over an e-mail. I think it's something that we probably should talk about."

The father, 4 December 2006, p.174a.

"It was nice to talk to you again, even though we can't really talk. I just one to ask you one favour, which is just to put in writing that you are willing to give me six weeks a year. That's all."

The mother, 9 December 2006, p.178a.

"after much deliberation, and asking A what he wants, we've decided that we will be spending Christmas here are in the UK. I guess this is what you wanted me to say, but I was waiting to you to make the decision and tell me … next Christmas will be yours with A, of course, I will fly with him, without doubt, but the situation will be clarified nearer the time..."

"You have had since you came back from your holiday to Mexico to sort the tickets out, but you have had one excuse after another why you haven't done it and seem to try and rile me up so I call the shot and say we aren't coming. It's not that you succeeded, its that we want to look forward to this holiday time and not be left hanging, waiting for you to make the choice, as you so aptly put it."

"We've had our differences, and it hasn't worked as we'd planned in the beginning. I've given you what you wanted, your freedom you have made it quite clear and have even told me. My only concern is our son. No matter how you and I get along he is the most important thing we've done together ... I'm very sorry it had come to this, but it has and the only important thing now is our son, he does love you very much."

The father, 18 December 2006, p.187.

"There is some paperwork coming from Morgan Stanley, if you can do me a huge favour and send that to me, it would be greatly appreciated. It should come within the next few days, I believe. If you can let me know… Thanks."

Letter from the father, p.191a.

" I hope you had or are having a wonderful Christmas holiday … I am sorry that you feel that I have ruined your life, and that you believe that I am the sole cause of all yours sorrow. I wish I could take all of the pain away that you say I have caused you, and make everything the way you would like but I cannot ... I love you F I always will … I have never asked for my freedom, F … I is supposed this will be the last time that we communicate with one another for awhile. I won't say much more, as it may become meaningless. I don't know what you tell the others… I still love you, F ... I hope the next time we speak you will have learned how to forgive me…"

17. The father says the mother's email of 17 September supports his story that the mother was returning to discuss the marriage at Christmas. The mother says she had agreed to defer the question of a divorce until Christmas time when she had promised to visit with A. This message was about the divorce. I accept the mother's account. It is supported by the father's next message where he says he was not trying to save the marriage and his subsequent requests for details of any divorce she was obtaining. Her whole account is consistent with the father readily accepting the dates of her visit at Christmas on 16 November 2006.

18. There are 3 cases which are helpful in considering whether the 8 days between 26 August and 3 September are or are not a significant time. The first is In Re M (Minors) (Residence Order: Jurisdiction) (1993)1 FLR 495. It was a decision brought to my attention after I had reserved my judgment. Counsel made subsequent written submissions in relation to it.

19. A mother took her 2 children from their grandparent's home in Scotland where they were habitually resident on 4 July 1992 for a 2 week holiday with her in England. On 13 July she told the grandparents that she was not returning the children. She started proceedings in England on 23 July.

20. The English courts only had jurisdiction if the children were not habitually resident in any other part of the United Kingdom on 23 July. It was held that they were not so habitually resident as the mother's notice to the grandparents on 13 July had brought their Scottish habitual residence to an end.

21. The question was whether they had between 13 July and 23 July acquired habitual residence in England. Balcombe LJ, with whom Steyn LJ as he then was agreed, said –

"I do not find it necessary to express a final opinion on this question. As stated in the passage from Lord Brandon's speech in Re J which is the third proposition above it is easy to lose an habitual residence: it is more difficult to acquire one. It is sufficient to say that I entertain grave doubts that the children had by 23 July 1992, regained an habitual residence in England."

22. Hoffman LJ agreed with the result. However he would have had less difficulty than Balcombe LJ in holding that on 13 July the children were habitually resident in England. He set out his reasons.

23. In Re F (A Minor) (Child Abduction) (1992) 1 FLR 548, a family moved to Australia from England arriving on 21 April 1991. On 21 May the father moved out of the house at the mother's suggestion. The father took the child to England on 10 July. Johnson J held that by 21 May the family were habitually resident in Australia. That finding was challenged on appeal. The case of Re M above was not referred to.

24. The Court of Appeal dismissed the appeal. Butler-Sloss LJ said –

"The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time. Looking realistically at the position of A (the child), by the time he left Sydney on the 10 July 1991, he had been a resident in Australia for the substantial period of nearly 3 months."

25. Finally I would refer to the speech of Lord Slynn in Nessa v Chief Adjudication Officer (1990) 2 AC 562 where he indicated that residence for an appreciable period of time was a question of fact to be decided on the day when the determination had to be made on the circumstances of each case.

"Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring a family, durable ties with a country of residence or intended residence, and many other factors have been taken into account. The requisite period is not a fixed period, it may be longer, where there are doubts."

Conclusion26. I accept that, when the mother arrived in the United States on 26 August 2006, she had a settled intention to remain there are with the father and A. That had evaporated within a day or two. The father knew she was unhappy. It was in all probability based on the mother's view that the father had failed to find them a home for them on their arrival. The marriage was not going to be saved.

27. It was however not until the 8th day that the mother announced her intentions. It was to return to England with A provided the father agreed to her taking A. He did.

28. I am not satisfied that a period of seven or eight days is an appreciable period of time in this case. That is for 2 reasons. The first is that the period of time is by itself too short. I rely on Re M above. Though the views of Balcombe and Steyn LJJ were not essential for the decision, they carry much weight. The views of Hoffman LJ are dissenting.

29. If I am wrong about that, and it is possible for a period of 7 days to be sufficient, then I hold it is not sufficient in the circumstances of this case. The mother changed her mind about the move very shortly after arrival. She never settled in the United States. She had gone to save the marriage. It took her only a day or so to realise that, as far as she was concerned, it was not possible. Given that A's habitual residence was dependent on hers, there was a settled intention but no habitual residence.

30. He had, with the mother, lost his habitual residence when the mother left the UK with the settled intention of residing in the United States. He had not by 8 September acquired a new one. Mr Jarman argues that to leave a child without an habitual residence is undesirable for the purposes of the Hague Convention. I see the force of that submission but I cannot let it prevail in the circumstances of this case.

31. Their new residence had not become settled nor habitual. There were doubts from the beginning. Those were not resolved in favour of remaining. A longer period was needed (see Nessa's case). Quite the contrary, they led to the mother's decision to return. To hold other wise would deprive the words of their natural and commonsense meaning. I am not satisfied that, on 3 September 2006, A was habitually resident in the United States.

Consent 32. I go on to consider this should I be incorrect about habitual residence. Though consent can be inferred, it has to be established by clear and cogent evidence. In this case my task is made easier by the effect that there is no dispute about whether agreement was or was not given. It is accepted that agreement was given. The question is for what was the agreement given.

Findings33. Both the mother and the father knew that the relationship was over when the mother left with A. It was the reason why the father's reaction was so marked. It was not his wish. He accepted however that this was how things were going to be, hence his remark that he could have more children and why he discussed schools in England. The mother was going to return with A at Christmas but it was only to be a visit. He did not question this when it was expressly spelt out to him on 15 November.

34. The only outstanding question was whether the mother would proceed with a divorce. At first this was going to be deferred to Christmas time. Later it became clear that the father accepted she was going to go ahead earlier. In fact she did not petition until January 2007.

35. I am satisfied that when the mother came to leave on 6 September it was clear to both of them that A would not be returning save for a visit. The father, in consenting to his departure, was aware of this as much as the mother and he consented. Those words were not used. But it is to be inferred when he raised no objection and booked the flight and took them to the airport knowing the mother and A were leaving for good, save for visits.

36. I do not see that the future discussion about custody in the messages alters the position. Custody could have been vested in the mother alone or in both parents. However what was not in doubt was that A was going to live in the future with his mother in England but visiting his father in the United States. I am satisfied the father consented to A permanently leaving the United States.

Acquiescence37. In the event that this arises, I should shortly set out my conclusions. It could occur if the father had not consented to A's permanent departure. It was only to be a temporary visit to England. He expected the mother to return at Christmas.

38. The law is settled and clear. It is to be found in the speech of Lord Browne-Wilkinson in Re H (Abduction: Acquiescence) (1997) 1 FLR 872. He set out the applicable principles –

"(1) For the purposes of Art 13 of the Convention, the question whether the wronged parent has acquiesced in the removal or retention of the child depends upon his actual state of mind.…The subjective intention of the wrong parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertion in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced."

39. I have to accept, for this analysis, that the mother left on the basis that she had agreed to return at Christmas. Has she proved that the exception applies here from the father's words and actions after their departure?

40. For this I have to review the extracts I have set out above. Does it show unequivocally that the father was not going to insist on his right to have A returned?

41. On this scenario there are only 2 elements which go to show that the father was not going to assert his right to A's summary return. They are firstly his questions about the mother having started divorce proceedings. Secondly there is his ready acceptance of the dates of a visit rather than a return.

42. I have not found this an easy analysis. The first part could be a mere inquiry about what if anything the mother was doing about divorce, knowing that she left the United States in an angry state about the father.

43. The second could equally be consistent in isolation with a wish to obtain the mother's and A's return on whatever terms the mother was offering. Once back in the United States, the father would have a better chance to say whether A would leave again or not.

44. In my judgment I do not find acquiescence proved. There is evidence but it is not sufficiently clear and unequivocal.

45. I find that A's habitual residence in the United States has not been proved. Finding also that the father consented to the mother leaving with A, I have to exercise my discretion.

46. In relation to that I would ordinarily balance the issue of A's welfare against the fundamental purpose of the Convention, namely his summary return to the country of their habitual residence. Here there is no habitual residence proved. I would therefore exercise my discretion in favour of A remaining here.

47. If I was not right about habitual residence, I would then look at the essential background. A has spent all his life in England except for less than 2 weeks in the United States. All his connections are with England. The father consented to his return. I would not exercise my discretion in favour of his return to the United States.

48. For the reasons I have given, this application fails. I will leave Ms Charlton to draw the order. It may include any agreement about the father's future contact with A that may have been agreed, if an order is needed.